This Judgment shall govern the disposal of
aforementioned two Criminal Appeals. Since both these
appeals arise out of the same judgment and common
questions are involved in these appeals, the same were
heard together and are being decided by this common
judgment.

2. Both, these appeals are directed against the
judgment dated 17.12.1997, passed in S.T.No.129/1996,
by the learned First Addl. Sessions Judge, Mandla,
whereby the present appellants, namely, Tilak Singh, 2

Dharm Bai and Badan Singh have been convicted for
offence punishable under Section 366 of IPC and
sentenced to undergo R.I. for 3 years, each with fine
amount of Rs.500/- to each appellant and in default of
payment of fine additional R.I. for two months each, and
appellant Munnalal has been convicted for offence
punishable under Section 376 of IPC and sentenced to
undergo R.I. for 7 years, with fine amount of Rs.1,000/-,
with default clause.

3. In nutshell, the case of prosecution is that on the
date of incident i.e. 27.9.1990, the accused/appellants
allured the prosecutrix to provide her Govt. work and to
earn more remuneration, have kidnapped the
prosecutrix from Village Bhabhera, taken to Village
Jarga, P.S. Maharjpur and kept her in the house of one
Vipatiya Bai. Thereafter, the accused/appellants Badan
Singh, Dharm Bai and Tilak Singh left her in the house of
appellant Munnalal and took Rs. 1500/- from the
appellant Munnalal. Appellant Munnalal kept her in his
own closed room upto 25.1.1991 and during stay
Munnalal had committed rape upon her. He used to rape
her by threatening and showing arms. Munnalal took
ornaments which she had worn on her body, thereafter,
on 25.1.1991, she escaped herself and reached at
Mandla on 27.1.1991 where her father-in-law and
husband met her. Thereafter, prosecutrix (PW/3) made a
written complaint Ex.P/4 to Superintendent of Police,
Mandla, on the basis of which Crime No.12/1991 for
offence punishable under Sections 366, 376 34 of IPC,
has been registered against the appellants. During 3

investigation, she was medically examined by Dr. Anjana
Bhalavi (PW/7), who opined vide Ex.P/6, that no definite
opinion can be given about recent intercourse. Dr.
Anjana Bhalavi (PW/7) prepared slides of prosecutrix,
advised for chemical examination and handed over the
same to the concerned constable. Accused/appellant
Munnalal was also medically examined by Dr. Ashok
Kumar Gupta (PW/8), who gave his opinion that
accused/appellant Munnalal is able to do intercourse. Dr.
Ashok Kumar Gupta (PW/8) also prepared slides of
semen of accused/appellant Munnalal, cloths of
accused/appellant Munnalal were kept in sealed packet
and handed over to concerned constable. Seized articles
were sent to FSL Sagar vide Ex.P/5 for chemical
examination. During investigation, the statements of
prosecution witnesses were recorded and after
completing investigation, appellants were charge-
sheeted for commission of offence punishable under
Sections 366, 376 read with Section 34 of IPC, before
the concerned Court.

4. The learned trial Court framed charges as aforesaid
offences against the appellants. Contents of the charges
were read over and explained to the appellants to which
they pleaded not guilty and claimed to be tried. They
took plea that they have been falsely implicated in this
case and examined one witness in their defence.

5. But the learned trial Court upon hearing the
parties, on going through the evidence of the witnesses,
exhibited documents and material available before it, 4

convicted and sentenced the appellants as above by the
impugned judgment.

6. Being aggrieved and dissatisfied with the aforesaid
judgment of conviction and order of sentence, the
appellants have preferred these appeals.

7. Learned counsel for the appellants submitted that
learned trial Court has failed to appreciate the factual
aspects of the case. They have been falsely implicated in
this case. Learned counsel further submits that
ingredients to constitute offence under Section 366
376 r/w Sec.34 of IPC are completely missing in the
instant case. He further submits that since the
accused/appellants denied to allure the prosecutrix,
taken her to provide Govt. labour job to gain more
remuneration, they have been roped in this false case.
The medical evidence Ex.P/6 recorded by Dr. Anjana
Bhalavi (PW/7), does not support the case of
prosecution. The important witnesses, namely, Chando
Bai (PW/1) and Halki Bai (PW/5) examined by the
prosecution have given contradictory statements and
they turned hostile. The learned trial Court erred in
holding the appellants guilty. He prays for acquittal of
the appellants by setting aside the judgment of the trial
Court.

8. Combating the above arguments, learned Panel
Lawyer appearing on behalf of the respondent/State has
submitted that there is enough evidence to hold guilty
the appellants for commission of above mentioned 5

offence. Prosecution witnesses and medical reports
have supported the case of prosecution. The learned
Panel Lawyer has vehemently argued that learned trial
Court in its detailed judgment has considered thoroughly
each and every factual and legal position submitted by
the defence as well as prosecution and rightly convicted
and sentenced the appellants for the aforesaid offences.

9. I have heard learned counsel for both the parties
and perused the record.

11. Now the question which is crucial to be decided
here is whether the accused/appellants, namely, Tilak
Singh, Dharm Bai and Badan Singh have kidnapped the
prosecutrix and accused/appellant, namely, Munnalal has
committed rape upon prosecutrix?

12. Prosecutrix (PW/3) in her statement has deposed
that she is married and her marriage was solemnized in
her childhood and she does not know the name of her
that husband. In her cross-examination, at para 4, she
has deposed that her second marriage was solemnized
with Akal Singh and her third marriage was solemnized
with Ramgopal, but she did not live with Akal Singh.

6

She further stated that she lived with accused/appellant
Munnalal for about three months along with his wife and
children. In para 6, she has further stated that when she
was not happy with accused/appellant Munnalal, she
came back to live with her husband Ramgopal. She also
stated that she came to Mandla in search of job along
with accused/appellants Tilak, Dharm Bai and Badan
Singh.

13. Ramgopal (PW/4) in his examination-in-chief has
stated that prosecutrix is his wife, but she is not his duly
married wife. He stated that on the day when her wife-
prosecutrix went from his house, he was not at her
home. He went to his father at Beejadandi. He further
stated that when he went to his father at Beejadandi, his
father told him to go back. Thereafter, he returned to
her home then he found that his wife, the prosecutrix
was not present in his house. He further stated that he
inquired about her from neighbourers and they informed
that accused/appellants Tilak Singh, Badan Singh and
Dharm Bai had taken prosecutrix for labour job.
Thereafter, he asked, about her wife the prosecutrix,
from accused/appellants Tilak Singh, Badan Singh and
Dharm Bai, then they told that his wife had made
accused/appellant Munnalal as her husband. In the
cross-examination, he has stated that earlier the
marriage of her wife was solemnized with Haridas and
they were blessed with three children. He does not know
that her marriage took place at Devri. He further stated
that accused/appellants Tilak Singh, Badan Singh and
Dharm Bai told him that prosecutrix on her own had 7

made accused/appellant Munnalal as her husband.
Further, Ramgopal (PW/4) in para 4 of his cross-
examination, has stated that prosecutrix had lived with
him for a period of about 8 years prior to the incident.
He further stated in para 5 of his statement that his wife
went from his house without informing him.

14. Dr. Anjana Bhalavi(PW/7), who had examined the
prosecutrix has stated that she has not found any
external marks of injury and her vagina admits two
fingers easily. She opined that no definite opinion can be
given about recent intercourse. Dr. Ashok Kumar Gupta
(PW/8) has also medically examined accused/appellant
Munnalal and opined that Munnalal was able to perform
intercourse. He prepared slides of semen of
accused/appellant Munnalal and handed over to police
with advise to chemical examination. Sub-Inspector
Amol Singh Pandram (PW/6) has stated that he had sent
the seized articles to FSL Sagar, vide memo Ex.P/5, for
chemical examination. It is pertinent to note here that
no examination report of FSL Sagar has been produced
on record.

15. From the aforesaid statement of prosecutrix
(PW/3), it is clear that Ramgopal is the husband of
prosecutrix, who had gone to Beejadandi. Prosecutrix
(PW/3) herself has stated that when she was at her
residence, accused/appellants Dharm Bai, Tilak Singh
and Badan Singh asked her to go with them to cut the
bamboo trees, then she went with them. About 8 to 9
days, they were cutting said bamboo trees. Appellant 8

Munnalal gave Rs.1500/- to one Padam and asked him
that all is well. Thereafter, appellant Munnalal took her in
a room, closed the door of that room and on asking, he
told her that he had purchased her on giving a sum of
Rs.1500/-. Appellant-Munnalal started to commit rape
upon her regularly and taken her jeweleries also. She
further stated that she has been subjected to
intercourse without her consent. She further stated that
she lived with accused/appellant Munnalal for about
three months and he did not leave her alone in the
room. She has further stated that when she was residing
with appellant-Munnalal in his house, at that time, his
wife and children were also residing with him. Chando
Bai (PW/1), wife of appellant Munnalal, in her deposition,
has also stated that prosecutrix came to her house and
started to live there and on her objection, she told that
she will live in her house. She further stated that she
called a Panchayat of senior persons of locality and in
that Panchayat, prosecutrix further told that she will live
in the house of appellant-Munnalal. In her cross-
examination, prosecutrix (PW/3) herself has stated that
“सस्वततः कहहा कक जब ममेरहा कदिल ममुनहा कमे यहहाहाँ नहहीं लगहा तब रहामगगोपहाल कमे यहहाहाँ जहाकर रहनमे लगग”.

16. In view of the aforesaid statements of prosecutrix,
it is clear that she was a consenting party in whole
incident. It is not the case of prosecution that at the
time of incident, the prosecutrix was minor or her age
was below 18 years. Thus, looking to her consent and
her own role, offence under Section 376 of IPC is not
made out against the accused/appellant Munnalal and
considering the overall facts and circumstances of the 9

case as stated herein above, since the prosecutrix has
gone herself for job along with accused/appellants Tilak
Singh, Dharm Bai and Badan Singh, no case is made out
against these accused/appellants, namely, Tilak Singh,
Dharm Bai and Badan Singh, for offence punishable
under Section 366 of IPC.

17. In view of the above discussion, taking the
cumulative effect of the circumstances, it appears that
material placed on record by the prosecution does not
bring home the charges against the appellants. I am of
the considered opinion that upon the material placed on
record, it would be unsafe to convict the appellants.
On careful consideration of the evidence on record, it
cannot be said that the prosecution has been able to
prove its case beyond reasonable doubt. If the court is
of the opinion that on the evidence two views are
reasonably possible, one that the accused/appellants are
guilty, and the other that they are innocent, then the
benefit of doubt goes in favour of the accused.

18. In the result, I allow the appeals, set aside the
judgment of trial Court and quash the convictions of the
appellants. Appellants are on bail. Their presence is no
more required and, therefore, it is directed that their bail
bonds shall stand discharged.

19. A copy of this judgment be sent to the trial Court
along with its record for information.